Because the Act was written in secrecy, it expectedly provoked criticism from all actors, including legal experts, civic society activists, judiciary and law enforcement branch of the government. Some politicians seeking electoral benefits have so far been its only supporters. Firstly, the Act's aggressive approach to dismissal of public officials is at odds with the wide range of constitutional principles and rules. On 18 October the State Counterintelligence Service filed a petition with the Constitutional Court of Ukraine for the official interpretation of the Act's various provisions. This is a disguised attempt to achieve a bigger purpose, i.e. declaring the Act unconstitutional. The petitioner claims that the Act contradicts Article 38 (equal right of access to public service), Article 43 (everyone has the right to labor, the state guarantees equal opportunities in the choice of profession and occupation), Article 58 (no one shall bear responsibility for acts that, at the time they were committed, were not deemed by law to be an offence), Article 61 (the legal liability of a person is of an individual character) of the Constitution of Ukraine. These constitutional rules taken together with the principle according to which "constitutional human and citizens' rights and freedoms shall not be restricted, except in cases envisaged by the Constitution of Ukraine" (Article 64) create a solid legal ground for the claim. Secondly, because the Constitution has direct effect and the courts can apply its provision directly there is a risk that the local courts will step in even before the Constitutional Court takes its decision. Mr. Mykola Golomsha, First Deputy Prosecutor General, and one of the high profile victims of this hasty dismissal campaign, has already challenged his dismissal and promised to do "whatever it takes to clear a name". If Mr. Golomsha's claim is successful, many more will follow. This will be a huge defeat for the lustration idea in Ukraine and a serious blow to the reputation of the state. Finally, the Act does not solve any real problems but rather creates imbalances within the public service undermining its efficiency and killing public servants' motivation. As the Economist, a weekly magazine, put it, "the Act has so far largely been used to clear space for new clans". Although the Act declares other purposes (in addition to the large scale dismissal campaign), it says nothing about the tools of achieving them. This is why the Act will very soon be viewed by the general public as a politically motivated move by its authors to clear the government of their political opponents, a very sad result for a very promising initiative.
The Ukrainian Journal of Business Law (#11 November 2014)
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